OHCHR Accountability and Remedy Project: improving accountability and access to remedy in cases of business involvement in human rights abuses
The right to a remedy is a core tenet of the international human rights system, and the need for victims to have access to an effective remedy is also recognized in the UN Guiding Principles on Business and Human Rights.
However, extensive research has shown that in cases where business enterprises are involved in human rights abuses, victims often struggle to access remedy. The challenges that victims face are both practical and legal in nature. To begin to address these challenges, OHCHR in 2014 launched the Accountability and Remedy Project (ARP, for short) with a view to contribute to a fairer and more effective system of domestic law remedies in cases of business involvement in severe human rights abuses.
The Project which also received a mandate from the Human Rights Council (resolution 26/22), aimed to deliver credible, workable guidance to States to enable more consistent implementation of the UN Guiding Principles on Business and Human Rights in the area of access to remedy.
OHCHR Accountability and Remedy Project I: Enhancing effectiveness of judicial mechanisms ion cases of business-related human rights abuse
In June 2014 the Human Rights Council adopted resolution 26/22, which requests the High Commissioner to “continue the work to facilitate the sharing and exploration of the full range of legal options and practical measures to improve access to remedy for victims of business-related human rights abuses, in collaboration with the Working Group, and to organize consultations with experts, States and other relevant stakeholders to facilitate mutual understanding and greater consensus among different views.”
In June 2016, OHCHR submitted a final report to the 32nd session of the Human Rights Council for consideration with outcome and recommendations from the ARP I. The Annex of the report contains guidance to states on improving accountability and remedy in domestic legal systems for cases of business- related human rights abuse. The addendum to the report further elaborates on this guidance.
The guidance was developed through inclusive multi-stakeholder processes, and will be designed to take into account different legal systems, cultures, traditions and levels of economic development.
On 29 June, the Council adopted a resolution by consensus which welcomed OHCHR’s work on improving accountability and access to remedy for victims of business-related human rights abuse and noted “with appreciation” the report.
To further support implementation of the guidance, OHCHR has produced a paper containing illustrative examples of methods that States have used and steps that States have taken in practice that are relevant to different elements of the guidance and which have the potential to improve access to remedy in cases of business-related human rights abuses. The illustrative examples have been identified through the extensive data collection process underpinning the guidance and are included for illustration and learning purposes only. The paper is intended as a “live” document that will be updated on an ongoing basis to reflected further experiences and lessons learned.
The ARP guidance complements other efforts and initiatives at the international, regional, and national levels aimed at enhancing accountability and remedy for human rights abuses by economic actors.
The programme of work comprises six distinct, but interrelated projects, which range from getting clarity on the legal tests for corporate accountability for involvement in gross human rights abuses to strategies to overcome financial obstacles to accessing remedy mechanisms. The projects have been selected because of their strategic value and potential to improve accountability from a practical, victim-centred perspective.
Background to this initiative
The question of how to secure accountability and access to remedy for victims of business-related human rights abuses has long been an issue on the business and human rights agenda. Research by civil society organizations, academics and others has found that judicial systems often fail to hold companies to account and to ensure effective remedy for victims. This situation is particularly acute in cases involving gross human rights abuses and other particularly serious offenses – such as slavery, torture, extra-judicial killings, forced and child labour, and large-scale harm to human health and livelihoods. While such offenses are most often perpetrated by states, companies can be involved either as offenders or by being complicit in such abuses.
As part of its mandate to advance the protection of and respect for human rights, in February 2014, OHCHR launched a process aimed at contributing to a fairer and more effective system of domestic law remedies to address corporate liability for gross human rights abuses. As the first step in this process, OHCHR published an independent study by legal expert Dr. Jennifer Zerk. This study examined the effectiveness of domestic judicial mechanisms in relation to business involvement in gross human rights abuses. The study identified barriers to accessing justice at domestic level, and the effects of differences in domestic approaches on the way that remedial systems are used in practice. OHCHR invited all interested stakeholders to submit feedback on the issues identified and recommendations made in the study.
OHCHR Accountability and Remedy Project II: Enhancing effectiveness of State-based non-judicial mechanisms ion cases of business-related human rights abuse
On 30 June 2016, the Human Rights Council adopted a resolution by consensus which welcomed OHCHR’s work on improving accountability and access to remedy for victims of business-related human rights abuse, noting “with appreciation” the report and requesting OHCHR to continue its work in this field and specifically, to:
“identify and analyse lessons learned, best practices, challenges and possibilities to improve the effectiveness of State-based non-judicial mechanisms that are relevant for the respect by business enterprises for human rights, including in a cross-border context, and to submit a report thereon to be considered by the Council at its thirty-eighth session” (OP 13).
For this purpose the OHCHR produced an initial draft scoping paper marking the beginning of OHCHR’s work in response of this new mandate. It aims to provide a preliminary assessment of current practices and challenges with respect to the use of State-based non-judicial mechanisms as a way of enhancing access to remedy in cases of adverse human rights impacts that are business-related, and to identify areas where there may be a need for further research and/or legal development. This initiative is called the “Accountability and Remedy Project II” (ARP II, for short).
Subsequently, OHCHR undertook a sector study focused on the historical and potential responses of State-based NJMs to adverse human rights impacts occurring in four “focus” business sectors: extractives, mining and natural resources; agribusiness and food production; infrastructure and construction; and textiles and manufacture of clothing. Focussing in particular on the types of remedies presently available, as well as issues of policy coherence, the sector study concludes that domestic systems for responding to adverse business-related human rights impacts through State-based NJMs are presently haphazard. While State-based NJMs appear to offer a route to a partial remedy in some cases, States are not, at present, generating sufficient (and sufficiently varied) opportunities for affected individuals and communities to seek and obtain adequate and effective remedies for adverse human rights impacts arising in these focus business sectors via State-based NJMs.
OHCHR has been gathering information about the work of State-based non-judicial mechanisms in different jurisdictions, via an Open Process Questionnaire as well as specific focus jurisdiction research. OHCHR is consulting with stakeholders in various jurisdictions about their experiences with State-based non-judicial mechanisms, how well they work in practice as an alternative to judicial mechanisms, and what could be improved.
With the information gathered during the phase 2 of the project OHCHR has produced a discussion paper providing the key observations arising from the information gathering exercise, identifying a number of legal, structural, practical and policy challenged, providing illustrative examples of respondig to the effectiveness criteria in UNGP 31 as well as preliminary ideas for the final report of the ARP II project.
The final report will be submitted and presented at the Human Rights Council’s thirty eight session in June 2018."